The State of Western Australia v GBT [No 3] - [2020] WASC 423

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GBT [No 3] [2020] WASC 423
CORAM:   CORBOY J
HEARD:   21 SEPTEMBER 2020
DELIVERED          :   30 SEPTEMBER 2020
PUBLISHED           :   24 NOVEMBER 2020
FILE NO/S:   DSO 1 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

GBT
Respondent

Catchwords:

High Risk Serious Offenders Act 2020 (WA) - Dangerous sexual offender - Review of continuing detention order - Whether the respondent remains a high risk serious offender - Whether continuing detention order should be affirmed

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Respondent found to remain a high risk serious offender
Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms H K Watson
Respondent	:	Ms S N Oliver

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Nil

CORBOY J:

The review, the outcome and the reasons

On 24 November 2017, Martino J found that the respondent was a serious danger to the community within the meaning and for the purpose of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). His Honour ordered that the respondent be detained in custody for an indefinite term for control, care and treatment (the continuing detention order).
On 6 May 2019, the respondent was convicted of a further serious sex offence. That offence was committed in 2001. The respondent was sentenced to 21 months' imprisonment backdated to 14 December 2017. The effect of the sentence was to extend the date of the first review of the continuing detention order made by Martino J.
The first review of the continuing detention order was held on 21 September 2020. The review was conducted pursuant to s 64 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). Section 64 is found in pt 5 of the Act. That Part came into operation on 26 August 2020. The DSO Act was repealed as and from that date.
I reserved my decision until 30 September 2020. I held on resumption of the review that the respondent remained a high risk serious offender and the continuing detention order made by Martino J should be affirmed. I gave very short oral reasons for my decision indicating that I would, as soon as conveniently possible, publish detailed written reasons for my findings and conclusions.
The respondent has commenced an appeal from my findings and orders. The ground of appeal alleges that in finding that the respondent had failed to discharge the onus of proving that he would substantially comply with the standard conditions of a supervision order, I erred by finding, contrary to the evidence, that the respondent had outstanding treatment needs and that his apparent denial of an ongoing interest in children increased his risk of re‑offending.[1]
[1] Appeal Notice dated 16 October 2020.
The appeal notice was filed before I was able to publish my foreshadowed written reasons. In the circumstances, I have concluded that it would be inappropriate for those reasons to now be published. What follows are the brief reasons I delivered orally, edited to correct minor grammatical errors and in the hope that the reasons, as published, are intelligible without altering the meaning and effect of the oral reasons given in the review. That has meant that the reasons read, as much as possible, as they were delivered orally.

The respondent's criminal history

I will not outline the respondent's criminal history for the purpose of these reasons. The history is set out in the reasons delivered by Martino J in making the continuing detention order. I will deal with the respondent's criminal history, and other antecedents, in my detailed reasons to follow.

The High Risk Serious Offenders Act

Section 68 of the HRSO Act, in summary, provides that on review under s 66 of an offender's detention, the court must rescind a continuing detention order if the court finds that the offender no longer remains a high risk serious offender. If the court does find that the offender remains a high risk serious offender, it must either affirm the continuing detention order or, subject to s 29, rescind the continuing detention order and make a supervision order. Section 68(2) provides that in deciding whether to make an order under s 68(1)(b), the paramount consideration is the need to ensure adequate protection of the community.
The term 'high risk serious offender' is defined by s 7 of the Act. An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is, 'satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence'. Section 3 of the Act defines a restriction order to mean a continuing detention order or a supervision order.
Section 5 of the HRSO Act defines a serious offence by reference to a number of offences specified in a schedule to the Act. There was no issue that the respondent had been convicted in the past of serious offences within the meaning and for the purposes of the Act.
As I observed in the course of the hearing, the definition of 'high risk serious offender' reflects Court of Appeal authority on the nature of a serious sexual offence and notions of what constitutes a danger to the community - concepts that were central to the operation of the previous legislation (the DSO Act).
Section 7(2) of the HRSO Act provides that the onus rests on the State to prove that an offender is a high risk serious offender. Section 7(3) specifies particular matters that the court must consider in determining whether or not a person is a high risk serious offender. Again, those matters mirror matters that were relevant under the DSO Act.
As mentioned, s 68(1)(b) of the HRSO Act provides that if the court finds that an offender remains a high risk serious offender, the court must either affirm the continuing detention order or, subject to s 29, rescind the continuing detention order and make a supervision order. Section 29(1) provides that 'a court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended'. Section 29(2) provides that 'the onus of proof as to the matter described in subsection (1) is on the offender'.
The 'standard conditions' of a supervision order are the conditions specified in s 30(2) of the Act. Relevantly, the standard conditions include a condition not to commit a serious offence during the period of any supervision order.

The evidence in the review

The court received evidence from Dr Wynn Owen, Dr Riordan, and Ms Mandolene.
Dr Wynn Owen and Dr Riordan gave opinion evidence. Their capacity to do so was not in issue. Dr Wynn Owen, Dr Riordan, and Ms Mandolene gave hearsay evidence of statements made to them by others, including the respondent, or statements contained in documents to which they had access for the purpose of preparing their reports and to give evidence. I accept that the evidence of Dr Wynn Owen, Dr Riordan, and Ms Mandolene was truthful and reliable on the matters about which they gave evidence.

Findings in the review

I am satisfied that the respondent remains a high risk serious offender. That is, I am satisfied, by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that the respondent will commit a serious offence.
In making that finding I have considered, as I am obliged to do, the matters referred to in s 7(3) of the HRSO Act. Further, I found the evidence of Dr Wynn Owen, Dr Riordan, and Ms Mandolene to be acceptable and cogent, having regard to the nature of the issue that I am required to determine.
Put very briefly, Dr Wynn Owen has diagnosed the respondent as suffering from a paedophilic disorder, non‑exclusive type, with a preference for females and also from a personality disorder with antisocial and avoidant traits.
In my view, both disorders are relevant to the risk of the respondent offending in the future. The diagnosis reflects in part, and explains in part, the respondent's significant history of sexual offending and the nature and repetition of his offending (what the Act sometimes refers to as 'the pattern' of the respondent's offending).
In the opinion of Dr Wynn Owen, the respondent presented a high risk of future serious sexual offending if not subject to a continuing detention or supervision order. That appears in exhibit 1 at page 200.
Dr Wynn Owen acknowledged that the respondent had made some treatment gains, but said in his evidence‑in‑chief, when questioned by Ms Watson:
So your overall conclusion in terms of [GBT's] risk if he's not subjected to a restriction order by a continuing detention order or a supervision order, you've confirmed is still a high risk?‑‑‑Yes.
Of serious of sexual offending?‑‑‑Yes, on the basis of not just the Static, but also the outstanding dynamic factors that are as yet unaddressed. It's early days in terms of acknowledgement of sexual deviance, for example. And that is a significant factor in [GBT]. And his problems with isolation, stress and coping, relationships, et cetera, are all factors of considerable relevance to this (ts 164).
The reference to 'Static and dynamic factors' in that answer is to actuarial tests that were undertaken by Dr Wynn Owen.
Dr Riordan outlined the history of the respondent's participation in programs designed to address the risk of his reoffending. As I have indicated, Dr Wynn Owen considered that the respondent had made gains from counselling which had reduced the risk of reoffending from when the continuing detention order was made by Martino J in 2017. Dr Riordan gave evidence about the counselling the respondent had received since 2017 and about his response to counselling.
The picture that emerged was, not unsurprisingly, complex. However, I broadly accept the submissions made by Ms Watson in her closing address about the effect of counselling in moderating the risk of the respondent reoffending. The fact that the respondent gave different reports to Dr Riordan, Ms Mandolene and Dr Wynn Owen on whether he still experienced sexual thoughts and fantasies about prepubescent females indicated a concern about the efficacy of his counselling to date and the possible need for further treatment.
Another area of concern was the link drawn by Dr Wynn Owen between the risk of the respondent reoffending and feelings of stress and social isolation that the respondent experiences and may continue to experience more significantly on release to the community. That link was relevant to the question of whether the respondent had discharged the onus of establishing, on the balance of probabilities, that he would comply with the standard conditions of a supervision order, and ultimately, whether I could be satisfied that the community would be adequately protected if a supervision order was made.
There was evidence that the respondent has some financial capacity to obtain private accommodation if he was released to the community. However, no accommodation has as yet been arranged. In my view, the community could not be adequately protected if a supervision order was made on the basis that the respondent would, at some stage, obtain accommodation. That is so even if the accommodation to be obtained was subject to some condition concerning police or Community Corrections approval.
In my view, the Act does not permit a supervision order to be made subject to some condition being satisfactorily fulfilled after the order is made but before an offender is released pursuant to the order. In any event, I consider the nature and causes of the respondent's offending are such that the question of his accommodation in the community is a critical issue in determining whether I could be satisfied, first, on the balance of probabilities, that the respondent would not commit a serious offence during the term of any supervision order that might be made, and second, that the community would be adequately protected if a supervision order was made.
The question of whether or not there is adequate accommodation available for the respondent to remain in the community that would satisfy each of those concerns depends in my view, at least in part, on whether the respondent could access structured accommodation if he was released to the community. By 'structured', I mean accommodation that had a security component, as well as other supervision aspects - accommodation that minimises the possibility of the respondent coming into contact with children, apart from very incidental contact, and which was in a location that reflected the respondent's diagnosis of a paedophilic disorder and a personality disorder.
Accommodation of that kind is not presently available to the respondent. I accept that those requirements present practical difficulties for the respondent in obtaining his release to the community while he is held in custody. That is a matter on which I propose to make some comment in my reasons to be published. However, the Act prescribes that the paramount consideration in determining whether a supervision order should be made is the need to ensure adequate protection of the community.
That consideration must ultimately govern the determination of whether an offender who has been found to remain a high risk serious offender should be released to the community under a supervision order. For those brief reasons, and for reasons to be published which will more fully identify the findings that I have made and the conclusions that I have reached, I will affirm the continuing detention order pursuant to s 68(1)(b) of the HRSO Act.
The order affirming the continuing detention order will be made today, so the time for the next review will run from today. The order will not await publication of my more detailed reasons and I will make sure that that date is notified to Community Corrections.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AB
Research Associate/Orderly to the Honourable Justice Corboy
24 NOVEMBER 2020